This is the petition Rick Siegel filed to be heard by the United States Supreme Court, asking that they review whether California's enforcement of the Talent Agencies Act can withstand constitutional scrutiny.
This is the petition Rick Siegel filed to be heard by the United States Supreme Court, asking that they review whether California's enforcement of the Talent Agencies Act can withstand constitutional scrutiny.
This is the petition Rick Siegel filed to be heard by the United States Supreme Court, asking that they review whether California's enforcement of the Talent Agencies Act can withstand constitutional scrutiny.
MARATHON ENTERTAINMENT, INC and RICK SIEGEL Appellants and Petitioner, VS. FOX & SPILLANE, GERARD P. FOX and JAY SPILLANE Defendants and Respondents, Petition for Certiorari to Supreme Court of California FOR A WRIT OF CERTIORARI Rick Siegel Pro Per 3379 Tareco Drive Los Angeles, CA 90068 - Pro Per for Appellant and Petitioner, RICK SIEGEL QUESTIONS PRESENTED FOR REVIEW Despite the California Talent Agencies' Act having no civil sanction and expressly stating that no violation of the Act is to be considered criminal, those found to have procured employment for an artist without a talent agency license are stripped of their rights to salaried commissions. The petitioners ask this Court to consider: Does meting out penalties for engaging in an activity bereft of notice of any consequence for engaging in that activity violate the Due Process and Equal Protection Clauses of the 14th Amendment? Does disgorging the right to be paid for one labors of those who have been duly found of committing a civil infraction itself violate the 13 th Amendment of the United States Constitution? Does a licensing scheme defme activity or in any way restrict activity to licensees when there is neither notice of any activity being restricted to licensees nor notice that the unlicensed engagement of that activity is subject to penalty? 2 LIST OF PARTIES (1) Marathon Entertainment, Inc.; Appellant (2) Rick Siegel; Appellant and Petitioner (3) Fox & Spillane; Respondent (4) Gerard P. Fox; Respondent (5) Jay Spillane; Respondent 3 TABLE OF CONTENTS Questions Presented For Review ....................... . List Of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Contents .................................. . Table of Authorities ................................ . Opinions Below ................................... . Junsdlctlon ...................................... . Constitutional Provisions, Statutes and Regulations at Issue ................................ . Reasons Why Certiorari Should be Granted ............. . I. Review Is Warranted Because The Enforcement Of California's Talent Agencies' Act Violates The Due Process Clause Of The Fourteenth Amendment Of 2 3 4 5 ii ... 111 -H- ..... The United States Constitution. . . . . . . . . . . . . . . . . . . . . 10 II. Review Is Warranted Because The Enforcement Of California's Talent Agencies' Act Violates The Equal Protection Clause Of The Fourteenth Amendment Of The United States Constitution And Does Not In Any Way Define Or Restrict Activity . . . . . . . . . . . . . . . . . . . . 13 III. Review Is Warranted Because California's Enforcement Of The Talent Agencies' Act Violates The Thirteenth Amendment Of The United States Constitution ............ 18 IV. Review Is Warranted To Correct A Misapplication Of Enforcement That Has Wrongly Compromised A Generation Of Personal Managers .......................... . Conclusion ....................................... . Certificate of Word Count ........................... . 7
4 FEDERAL CASES BMW of America v. Gore TABLE OF AUTHORITIES 517 U.S. 559 (1995) ................................................ . Conally v General Construction Co. 269 U.S. 385 (1926) ................................ . Interstate Circuit, Inc. v City of Dallas 390 U.S. 676 (1968) ................................ . Lambert v. CA. 355. U.S. 225, (1957) ............................................... . Lanzetta v New Jersey 306 ~ S . 451 (1939) ................................ . Preston v. Fe"er . 52 U.S. 346, 128 S.Ct. 978 (2008) ................................ . u.s. v. Evans (1948) 333 U.S. 483, 68 S. Ct. 634, 92 L. Ed. 823 ............. . Winters v. New York 333 U.S. 507 (1948) ................................ . STATE CASES Armenta v. Churchill (1954) 42 Ca1.2d 448 ................................ . Buchwald v. Katz (1972) 8 Cal. 3d 493 ................................. . Dyna-Med, Inc v. Fair Employment & Housing Comm. (1987) 43 Cal.3d 1379, 1385-1388 ................................ . Loving & Evans v Blick (1949) 33 Cal. 2d 603 ................................................ . Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 974 ............................... . Marathon Entertainment, Inc. v. Fox & Spillane B224686 (2011) .................................... . Moore v. California State Bd. of Accountancy (1992) 2 Cal.4th 999 ........................... . New Jersey v. Fair Lawn Service Center, Inc. (N.J. 1956) 120 A.2d 233 .......................................... . People v. Rogers (1971) 5 Cal.3d 129 ................................. . Wood v. Krepps (1914) 168 Cal. 382 ................................................... . 21 13 ~ 1 3 %-14,)$(1 -H- 11, JKl7 13 5 STATUTES Business and Professions Code section 1270 ................... 15 Business and Professions Code section 2050 ................... 15-16 Business and Professions Code section 2901 ................... 14 Business and Professions Code section 2903 ................... 14 Business and Professions Code section 2970 ................... 14 Business and Professions Code section 2971 ................... 14 Business and Professions Code section 4320 ................... 16 Business and Professions Code section 5051 ................... 14 Business and Professions Code section 5058 .................... 14 Business and Professions Code section 5615 ................... 14-15 Business and Professions Code section 5640 ................... 14-15 Business and Professions Code section 6980.10 ................. 15 Business and Professions Code section 7027 ................... 15 Business and Professions Code section 7028 ................... 15 Business and Professions Code section 7031 .................... 15 Business and Professions Code section 7492 .................... 16 Business and Professions Code section 8554 .................... 16 Business and Professions Code section 9678 .................... 16 Business and Professions Code section 9852 .................... 16 Business and Professions Code section 9884.16 ................. 16 Business and Professions Code section 10136 . . . . . . . . . . . . . . . . . .. 16 Business and Professions Code section 15006 ................ , ... 16 Labor Code section 1700 et seq .......................................... 19 Labor Code section 1700.4(a) ............................... 5-6, 13 Labor Code section 1700.5 ................................. 6, 13 Labor Code section 1700.30 ................................................. 18 Labor Code section 1700 .44(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 18 CONSTITUTIONAL ARTICLES, AMENDMENTS Article 1, Section 10 of the United States Constitution ............ 19-20 Thirteenth Amendment to the U.S. Constitution ................ 5, 18, 19 Fourteenth Amendment to the U.S. Constitution ................ 5,9, 11, 17 OTHER REFERENCES Final History of Assembly Bill No. 2535 ...................... 18 Report 0/ the CA. Entertainment Commission .................. 10 Virginia Law Review, Vol. 59, No.6 (Sept. 1973) Occupational Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 University o/Pennsylvania Law Review Vol. 67 (1960) The Void-For-Vagueness Doctrine in the Supreme Court . ... 9 Witkin, Summary o/Cal. Law (1960) ......................... 13 6 IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI Petitioner respectfully prays that a writ of certiorari issue to review the judgment below. OPINIONS BELOW [ ] For cases from federal courts: The opinion of the United States court of appeals appears at Appendix to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished. The opinion of the United States district court appears at Appendix to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ] is unpublished. [V'J For cases from state courts: The opinion of the highest state court to review the merits appears at Appendix I to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [0 is unpublished. The opinion of the A-P PEL-LA,-e: STATE court appears at Appendix 2-.- to the petition and is [ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [v1 is unpublished. 1. JURISDICTION [ ] For cases from federal courts: The date on which the United States Court of Appeals decided my case w ~ __________________ [ ] No petition for rehearing w ~ timely filed in my case. [ ] A timely petition for rehearing ~ denied by the United States Court of Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix __ _ [ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. _A __ _ The jurisdiction of this Court is invoked under 28 U. S. C. 1254(1). ~ For c ~ e s from state courts: The date on which the highest state court deciled my case was 1 ecs:,..lII' If, l.611 A copy of that decision appears at Appendix . [ ] A timely petition for rehearing ~ thereafter denied on the following date: __________ , and a copy of the order denying rehearing appears at Appendix ___ , [ ] An extension of time to file the petition for a writ of certiorari was granted to and including (date) on (date) in Application No. _A __ _ The jurisdiction of this Court is invoked under 28 U. S. C. 1257(a). . .. III CONSTITUTIONAL PROVISIONS, STATUTES AND POLICIES AT ISSUE Thirteenth Amendment of the United States Constitution Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Fourteenth Amendment of the United States Constitution Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. CA. Labor Code 1700: The Talent Agencies Act The California Talent Agencies' Act is a set of statutes created to protect the interests of artists working in California. The relevant statutes: 1700.4. (a) "Talent agency" means a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists, except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under this chapter. Talent agencies may, in addition, counselor direct artists in the development of their professional careers. 7 1700.5. No person shall engage in or carry on the occupation ofa talent agency without first procuring a license therefor from the Labor Commissioner. The license shall be posted in a conspicuous place in the office of the licensee. The license number shall be referred to in any advertisement for the purpose of the solicitation of talent for the talent agency. Licenses issued for talent agencies prior to the effective date of this chapter shall not be invalidated thereby, but renewals of those licenses shall be obtained in the manner prescribed by this chapter. 1700.44 (b) Notwithstanding any other provision of law to the contrary, failure of any person to obtain a license from the Labor Commissioner pursuant to this chapter shall not be considered a criminal act under any law of this state. OPINIONS BELOW The CA. Supreme Court denied the petitioners' petition for review of a California Court of Appeal affirmation of a Los Angeles Superior Court denial of the petition to vacate an Arbitration Award. The original Arbitration Award rejected the petitioners' malpractice, breach of contract, breach of fiduciary duty and constructive fraud claims. The Appellants, as the parties' arbitration agreement allowed, appealed the fmdings of the Award to an appellate arbitrator, alleging, among other things, that the original award does not make a determination, as contracted to do, on the fundamental issue of malpractice whether the failure to raise the 'no penalty' argument was below the standard of care and caused the Appellants to lose three T AA cases it otherwise would have won. Instead the original award states, "one cannot say with certainty that but for the alleged conduct that was below the standard of care, Marathon and Siegel would have obtained a more favorable result." 8 REASONS WHY CERTIORARI SHOULD BE GRANTED Every child learns that two wrongs don't make a right. An incorrect legal precedent turns that concept on its ear. One incorrect ruling relevant to the enforcement of licensing relevant to the California Talent Agencies Act, ("T AA") has led to over forty years of wrong determinations. In Buchwald v. Katz (1972) 8 Cal. 3d 493 ("Buchwald"), the California Supreme Court upheld a California Labor Commission determination that Matthew Katz, the Jefferson Airplane's personal manager, had unlawfully engaged in unlicensed activities and thus violated the Artists' Managers Act, 1 and in doing so forfeited his right to contract. The ruling was wrong on several levels. It found that Mr. Katz had no right to demand arbitration, despite the parties having agreed to arbitrate disputes, because it "overlook[ ed] the basic contention of petitioners that their agreement with Katz is wholly invalid because of his noncompliance with the Act. If the agreement is void no rights, including the claimed right to private arbitration, can be derived from it." (Id. at p. 501) That ruling was the guiding precedent for 36 years, wrongly mooting personal managers right to arbitrate, until this court in Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978 (2008) corrected that error, finding that such arbitration clauses were to be enforced. I At the time, California referred to talent agents as artist's managers. In 1978, California retitled the licensing scheme to the Talent Agencies' Act, to better differentiate talent agents from personal managers. 9 The granting of Certiorari is similarly needed to correct the Buchwald court's primary determinations, that (1) the Act regulates activity - as detailed below, it does not - and (2) that California's Labor Commission and courts have the statutory authority to interfere with anyone's right to be paid for their labor- that as the legislature did not codify a penalty, neither courts nor the administrative agency has the right to penalize. I. Review Is Warranted Because The Enforcement Of California's Talent Agencies' Act Violates The Due Process Clause Of The Fourteenth Amendment Of The United States Constitution For a statute to be constitutional there has to be clarity as to: (1) who is affected by the statute, (2) the conduct that is regulated, and (3) the consequence for ignoring the regulation: "The due process clause [of] the fourteenth amendment requires a statute be declared void when it is so vague that "men of common intelligence must guess at its meaning and differ as to its application ... " Conally v General Construction Co., 269 U.S. 385,391 (1926). Undue vagueness in the statute will result in its being held unconstitutional whether the uncertainty goes to the persons within the scope of the statute, Lanzetta v New Jersey, 306 U.S. 451 (1939); the conduct which is forbidden, Interstate Circuit, Inc. v City o/Dallas, 390 U.S. 676 (1968); Winters v. New York, 333 U.S. 507 (1948); or the punishment which may be imposed, United States v Evans, 333 U.S. 483 (1948). See generally Note, The Void-For-Vagueness Doctrine in the Supreme Court, U. Pa. L. Rev. 67 (1960). Occupational Licensing, U. Va. L. Rev. Vol. 59, pg. 1104 (1973). The California Talent Agencies Act leaves uncertainty relevant to all three of these bars to constitutionality. 10 In 1982, the California Legislature ... "provisionally amended the Act to impose a one-year statute of limitations, eliminate criminal sanctions for violations of the Act, and establish a "safe harbor" for managers to procure employment if they did so in conjunction with a licensed agent. (Fonner 1700.44, as enacted by Stats. 1982, ch. 682, 3, p. 2815; Entertainment Com. Rep., supra, at pp. 8,38-39.) It subjected these changes to a sunset provision and established the 10-person California Entertainment Commission (Entertainment Commission), consisting of agents, [personal] managers, artists, and the Labor Commissioner, to evaluate the Act and "recommend to the Legislature a model bill." (Fonner 1701- 1704, added by Stats. 1982, ch. 682, 6, p. 2816, repealed by its own tenns, Jan. 1, 1986.) In 1986, after receiving the Entertainment Commission Report, the Legislature adopted its recommendations, which included making the 1982 changes pennanent and enacting a modest series of other changes. (Stats. 1986, ch. 488, pp. 1804-1808; Entertainment Com. Rep., at pp. 22-34; Sen. Com. on Industrial Relations, Analysis of Assem. Bill No. 3649 (1985-1986 Reg. Sess.) as amended Apr. 15, 1986, p. 5 [bill would implement Entertainment Commission's recommendations "in full"].) So the Act has stood, with minor modifications, for the last 20 years." Marathon Entertainment v. Blasi (2008) 42 Cal. 4th 952, 965. The pennanent repeal of the penalty and addition of 1700.44(b), stating that no crime could be committed for violating the Act, was recommended after the Entertainment Commission concluded there was ... " ... an inherent inequity - and some question of constitutional due process - in subjecting on to criminal sanctions in violation of a law with is so unclear and ambiguous as to leave reasonable persons in doubt about the meaning of the language or whether a violation has occurred. '''Procure employment' is just such a phrase ... the uncertainty of knowing when such activity mayor not have occurred ... has left the personal manager uncertain and highly apprehensive about the pennissible parameters of their daily activity. " (Appendix J{, Report of the CA. Entertainment Commission, p. 25.) Lf 11 The legislative history inarguably shows that the Legislature knew that with 1986's permanent removal of the penalty statute, the TAA would have neither a criminal nor civil remedy. (Id) Thus, even if one found unlawfulness to the activity of unlicensed procurement of employment for an artist, assigning any penalty for that action is legally unsupportable: "a task outside the bounds of judicial interpretation." (United States v. Evans Supra at 495.) "Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed." (Lambert v. CA. 355 U.S. 225,228 (1957).) "Elementary notions of fairness enshrined in this Court's constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may impose." (BMW of America v. Gore 517 U.S. 559, 574 (1995).) "Where a statute fails to provide a penalty it has been uniformly held that it is beyond the power of the court to prescribe a penalty." (New Jersey v. Service Center, Inc. (N.J. 1956) 120 A.2d 233,236.) Without a penalty provision giving notice of any, no less the severity of what penalty California can impose for the unlicensed procurement of employment for an artist, California's meting out penalties for such violations is 12 in disharmony with all the above holdings and violative of the due process clause of the 14th Amendment of the United States Constitution. ll. Review Is Warranted Because The Enforcement Of California's Talent Agencies' Act Violates The Equal Protection Clause Of The Fourteenth Amendment Of The United States Constitution And Does Not In Any Way Def"me Or Restrict Activity The Court of Appeal found the Petitioners' argument neither the Labor Commission nor court had the statutory right to address "violations of the T AA or to void manager-talent contracts that violate the Act ... " ... meritless ... Labor Code section 1700.44 specifically provides the Labor Commission authority to hear disputes arising under the TAA. The TAA, in turn, "defines conduct, and hence contractual arrangements, that are illegal: An unlicensed talent agency may not contract with talent to provide procurement services. (Labor Code, 1700.4 subd. (a), 1700.5)" (Blasi, supra, 42 Cal.4th at p. 991.) Under the Civil Code, contracts based on an unlawful purpose are void. (See Civ. Code, 1596, 1598, 1599.) Thus, the Labor Commission has explicit authority to hear matters arising under the T AA and to void contracts that violate the Act's provisions. The fact that the Legislature elected to remove criminal liability for violations of the T AA simply means that neither the Labor Commission nor the courts may impose criminal penalties for violations of the T AA." (B224686, th. 8, page 21-22, emphasis added) This finding is based upon the Buchwald holding that, "Since the clear object of the Act is to prevent improper persons from becoming artists' managers and to regulate such activity for the protection of the public, a contract between an unlicensed artists' manager and an artist is void. (See Wood v. Krepps, 168 Cal. 382, 386 [143 P. 691, L.R.A. 1915B 851]; Loving & Evans v. Blick, 33 Cal. 13 2d 603, 608-609 [204 P.2d 23]; 1 Witkin. Summary olCal. Law (1960) p. 185.) However, though found first by the Labor Commissioner and affirmed by the Buchwald court and in every court determination concluding that 1700.4(ai and 1700.5 3 (of both the Artists' Managers and Talent Agencies' Acts) defines conduct and regulates activity is legally unsupportable. 1700.4(a) defmes the responsibilities/activities of the regulated occupation and 1700.5 states that one must have a license to engage in the licensed occupation. Moore v. California State Bd 01 Accountancy (1992) 2 Cal.4th 999 (Moore) examined completely analogous statutes. Like the T AA, it defines what an accountant does and that one must have a license to call oneself an accountant. Like the TAA, California's Accountancy Act has no statute stating that only licensees can engage in the defmed activities of an accountant. Moore holds that the statutory construction prohibits one from "assum[ing] or us[ing] any title or designation 'likely to be confused' with the two official titles reserved for licensed accountants: 'certified public accountant' and 'public accountant' ( 5058)," but specifically does not limits any activity associated with accounting to those with accounting licenses. 2 "'Talent Agency' means a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists, except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under this chapter. Talent agencies may, in addition, counselor direct artists in the development of their professional careers 3 In its relevant part: "No person shall engage in or carry on the occupation of a talent agency without first procuring a license therefor from the Labor Commissioner." 14 Likewise, Business and Professions Code section 2903 defines "practice of psychology" as the "rendering or offering to render for a fee to individuals, groups, organizations or the public any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior." Yet, teachers, salespeople, motivational speakers, life coaches and others are free to utilize psychological principles to influence behavior without worry of punishment, so long as they do not claim to be licensed psychologists. Those who do violate the "Psychology Licensing Law" and guilty of a misdemeanor, punishable by imprisonment and, or, a fine, and stoppable by injunction (Bus. and Prof. Code 2901, 2970, 2971), a notice of penalty that does not exist in the Talent Agencies Act. Similarly, gardeners and landscape designers openly and lawfully engage in the conduct defined as being that of a landscape architect for which a license is required, 4 but they only face criminal sanction if they claim to be a landscape architect, 5 again notice of penalty that does not exist in the Talent Agencies Act. Like the occupational licensing schemes above, the Contractors' State Licensing Law, Bus. and Prof. Code 7000 et seq ("CSLL") has statutes that define "contractor" by the activities in which contractors engage. Unlike the T AA 4 Business and Professions Code 5615: "A person who practices landscape architecture within the meaning and intent of this article is a person who offers of performs professional services, for the purpose of landscape preservation, development and enhancement .... " 5 See Bus. and Prof. Code 5640. 15 and the above-mentioned schemes, however, the CSLL statutorily memorializes that only those with licenses, and in some cases, additional certifications, may lawfully engage in the defined activities. 6 The CSLL also gives notice that engaging in the activities of a contractor without having a contractors' license is a misdemeanor 7 and results in loss of rights to "collection of compensation for the performance of any act or contract were a license is required by this chapter." 8 Similarly to the State Contractors' Act, Bus. and Prof. Code 1270(a) requires one to acquire a cytotechnologist license before performing cytological slide examinations; 6980.10 makes it unlawful to engage in the activities ofa locksmith without a valid locksmith license; 2050 et seq. makes it a crime to prescribe drugs or render treatment without a "physician's and surgeon's certificate"; and among other similar laws, 4320 et seq. criminalizes the dispensation of pharmaceuticals by unlicensed persons. As engaging in any of these defmed activities without an appropriate license is criminal and subjects the transgressor to loss of contractual rights, such licensing schemes do define and regulate conduct. The majority of licensing schemes statutorily prohibit unlicensed entities from suing to enforce their contracts for engaging in the regulated activities: real estate brokers (Bus. & Prof. Code, 10136), alarm companies (id. at 7492.5), 6 Bus. and Prof. Code 7027-7028. 7 Bus. and Prof. Code 7028(a). 8 Bus. and Prof. Code 7031. 16 structural pest control operators (id. at 8554), cemetery brokers and salespersons (id. at 9678), electronic and appliance repair dealers (id. at 9852), automotive repair dealers (id. at 9884.16) and insurance adjusters (Ins. Code, 15006). But all schemes that in fact do regulate activity, save the T AA is enforced, include statutes not only clearly giving notice to what the regulated activity is, but also notice of a penalty for engaging in those activities. The Talent Agencies Act is California's only licensing scheme that punishes non-licensees without a statute that limits the engaging of an activity to licensees. Per the doctrine of ejusdem generis, adjudicators are to determine legislative intent by interpreting terms listed or grouped in statutes "similar in nature and scope." (See Moore at pp. 1011-1012, citing People v. Rogers (1971) 5 Ca1.3d 129, 142 and other authorities.) As such, the TAA should be enforced as the other licensing schemes that do not regulate or defme activity. The Equal Protection Clause provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." California's courts and labor commission robs unlicensed talent representatives, in particular personal managers, the same protection under the law that all other occupations receive - notice that one must have a license before engaging in an activity intrinsic to their vocation. While never legally defmed by any court, the personal manager serves as the chief executive officer for the artist, overseeing and working with the artist's 17 publicist (VP of public relations), business manager (VP of finance), transactional attorney (VP of business affairs), and assorted television and film, literary, music, publishing and personal appearance agents (the vice-presidents of sales). Procuring employment is the only way for the Artist to gamer revenue. To prohibit a CEO from being part of the revenue generation of the entity he represents in essence outlaws the occupation; at a minimum the state must provide notice that one must have a license to engage in such activities, as California does in all other licensing schemes that do in fact regulate activity. Failing to do so, does not, as the 14th Amendment demands, provide personal managers the same access to the safety of law that all other workers in the state of California. III. Review Is Warranted Because California's Enforcement Of The Talent Agencies' Act Violates The Thirteenth Amendment Of The United States Constitution The only penalty ever codified into the Artists' Managers Act is 1700.30. It is the statute later removed by the California Legislature when it was 1700.30 of the Talent Agencies' Act. It had nothing to do with the activity of procuring employment opportunities for artists: "No licensee shall sell, transfer or give away any interest in or the right to participate in the profits of the artists' manager [talent agency after the Talent Agencies' Act was codified on January 1, 1979] without the written consent of the Labor Commissioner. A violation of this section shall 18 constitute a misdemeanor, and shall be punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or imprisonment for not more than 60 days, or both." See Appendix B, Final History of Assembly Bill No. 2535, pg. 13. So though enforced as if there was a penalty for such unlicensed activity, the California legislature never limited the activity of procuring employment for an artist to licensed talent agents. Even had it been their intention, as the legislature never codified any consequence to procurement without a license, such acts could never be considered criminal. The Act itself removes any lingering doubt that no activity related to the act can be considered criminal: "Notwithstanding any other provision of law to the contrary, failure of any person to obtain a license from the Labor Commissioner pursuant to this chapter shall not be considered a criminal act under any law of this state." (CA Labor Code 1700.44 (b)) The 13 th Amendment of the United States Constitution states: ''Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." The personal manager is hired, supervised, paid and fired by the artist, and is paid exclusively via commissions through a percentage, usually between 10 and 20%, of the artist's income. It is those commission payments to the personal manager that over one hundred times, costing the 19 personal management perhaps a half-billion dollars ($500,000,000), has been wrongly disgorged by the labor commission. Procuring employment for an artist without a talent agency is not unlawful, and by disgorging the manager's right to their salary without criminality, the decades-long enforcement has violated the precept that our country was so willing to guarantee that no Americans be subjected to involuntary servitude, "except as a punishment for a crime whereof the party have been duly convicted of a crime," that we were willing to fight a civil war. Here, just the granting of review would eradicate the problem. IV. Review Is Warranted To Correct Renegade Enforcement That Has Wrongly Compromised A Generation Of Personal Managers The California Labor Commission is an administrative agency that continually accepts petitions for controversies and metes out punishment despite hornbook law disallowing such actions: "An administrative agency cannot by its own regulations create a remedy which the Legislature has withheld." (Dyna-Med, Inc. v. Fair Employment & Housing Comm. (1987) 43 Cal. 3d at 1385-1388.) "The general rule is that' [w ]here the enabling statute is essentially remedial, and does not carry a penal program declaring certain practices to be crimes or provide penalties or [mes in vindication of public rights, an agency does not have discretion to devise punitive measures such as the prescription of penalties or fines. The statutory power to command affirmative action is remedial, not punitive.' ... see also Youst v. Longo 20 (1987) 43 Cal.3d 64,82-83 [233 Cal.Rptr. 294, 729 P.2d 728] [where regulatory scheme provides for one kind of relief and is silent on another, it should be construed to exclude the latter].)" (Jd) There is no way to tell why the Labor Commission chose to disgorge Matthew Katz's contractual rights to some $12,000,000 in commissions otherwise owed him by the Jefferson Airplane. But the resulting Buchwald v. Katz decision, which substantially impaired a legal, contractual relationship ,and therefore was arguably violative of Article 1, Section 10 of the United States Constitution, the Contract Clause, created an avalanche of decisions that has wrongfully barred personal managers of their right to be paid their salaried commissions for now some 45 years. This is not even close. A California legislative body found that there was too much uncertainty as to what created unlawfulness to mete out penalties, and in agreement, the state legislature adopted their recommendations and eliminated the sole penalty associated with the Talent Agencies Act. So clearly the enforcement of the T AA does not pass the bar for clarity as to either what conduct is being regulated and what the penalty is for ignoring that regulation. Clearly the meting out of penalties is not in accord with the uniformly held law that there cannot be penalties meted out when there is no notice of such. And as stated above, the Labor Commission's continued creation of penalties - and if Certiorari is granted the Petitioners will show the arbitrary nature of how the Labor Commission 21 .. has morphed the severity of the remedy over time without any statutory guidance - is opposite to longstanding state law. Even if California's enforcement is affinned, review will allow personal managers to know why they can be penalized without notice and why their compensation can taken away without having committed a criminal act. With that knowledge, the thousands toiling in that profession can know with confidence how to proceed - whether or not they must, for the sakes of their and their families' futures, find a new line of work. CONCLUSION Based on the foregoing, Petitioners respectfully submit that this Petition for Writ of Certiorari should be granted. The Court may wish to consider summary reversal of the decision of the California Supreme Court and remand the parties back to a California Superior Court. Dated March 7, 2012 Respectfully Submitted,
22 .. CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.204(c)(1 The text of this brief, including footnotes (but excluding tables, this certificate, and appendices), consists of 4,122 words as counted by the Microsoft Word word-processing program used to generate the brief.